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Sears v Franks [2020] NZFC 7474

Published 16 March 2021

Relationship property division — whether qualifying relationship — whāngai — de facto relationship — contemporaneous relationships — pākehā vs Māori concepts — taonga Māori — Māoridom — Māori land — Property (Relationships) Act 1976, ss 2, 2D & 52B — Te Ture Whenua Māori Act 1993, s 129(2) — High Court Rules 2016, sch 4 — Paul v Mead [2020] NZHC 666 — Chapman v P [2010] NZFLR 855 — Scragg v Scott [2006] NZFLR 1076 — Ngavaevae v Harrison [2017] NZHC 2788 — DM v MP [2012] NZHC 503 — Greig v Hutchison [2016] NZCA 479 — Public Trust v Cornelius [2009] NZFLR 514. The applicant applied for the distribution of relationship property. This was opposed by the respondent, who claimed that there was no qualifying relationship, and that the parties had been in a whāngai relationship; and even if there were a qualifying relationship there was no relationship property for division. The issues therefore for determination by the Court were: whether there was a whāngai relationship between the parties; whether the parties had been in a de facto relationship (DFR) pursuant to s 2D of the Property (Relationships) Act ("PRA"); and whether it was possible for the parties to be both in a DFR and a whāngai relationship. If the parties were in a DFR: what the duration was; what the property pool was; the status of the house in the name of respondent; and whether there were any post-separation contributions to be resolved. The parties had met in 2000 when the applicant was in her early twenties and the respondent was in his mid forties, and it was claimed they had been in a relationship from 2002 until sometime between 2013 (in a whāngai relationship as claimed by the respondent) and 2015 (in a DFR as claimed by the applicant). Their child had been born in 2007 and had spent some time living with the respondent father so he could attend school. The respondent had been in a DFR with another woman until she passed away in 2012, with whom the respondent also had a child and owned the property in question. The Judge considered academic literature and expert witness evidence on the concept of whāngai relationships, noting that there was nothing in the literature which suggested that a person could be whāngai'd outside of the same whānau/iwi group; that it was usual for a whāngai and parent to have a sexual relationship; and that a whāngai relationship can be terminated, but that this may not necessarily be determinative. However, based on this evidence and evidence from other family members and friends, the Judge concluded that the parties were not in a whāngai relationship. On the issue of whether a qualifying DFR existed between the parties, the Judge considered the relevant criteria in s 2D of the PRA and case law on the matter and concluded that there was no qualifying relationship. This was because the parties, despite having a child together and some public appearance of a relationship, had not lived together consistently and had not had a significant degree of shared financial involvement, and the respondent father had been in a relationship with another woman with whom he owned property. Having determined this, the Judge did not need to consider the issue of what relationship property there may be for division or whether the land in question was Māori land. However the Judge noted that given that the respondent and the other woman (prior to her death) had owned the property as tenants in common, it was unlikely it would qualify as the "family home", and it was not Māori land for the purposes of the Te Ture Whenua Māori Act. Costs were to lie where they fell unless the parties wished to make a submission within 14 days.